Ettor v. City of Tacoma

• Citation: 106 P. 478,57 Wash. 50
• Parties: ETTOR et ux. v. CITY OF TACOMA et al.
• Decision Date: 21 January 1910
• Court: United States State Supreme Court of Washington

106 P. 478

57 Wash. 50

ETTOR et ux. v. CITY OF TACOMA et al.

Supreme Court of Washington

January 21, 1910

Department 1. Appeal from Superior Court, Pierce County; W. O. Chapman Judge.

Action by Manley Ettor and wife against the City of Tacoma and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Boyle Warburton & Brockway, for appellants.

T. L Stiles, Frank R. Baker, and F. A. Latcham, for respondent City of Tacoma.

H. H. Field and George W. Korte, for respondent Chicago, M. & P. S. Ry. Co.

CHADWICK J.

This is an action instituted by plaintiffs to recover damages consequent upon grading certain streets in the city of Tacoma. Under section 47, c. 84, p. 207, Laws 1893, section 48, c. 153, p. 336, Laws 1907, and section 821, Ballinger's Ann. Codes & St. (Pierce's Code, § 5095), such damages were recoverable. The Legislature of 1909 (section 1, c. 80, p. 151, Laws 1909) repealed this law, so that no remedy existed at the time this case was tried in the lower court. Judgment was rendered against plaintiffs in the court below, and they have appealed.

Many questions are raised, but we think the act of the last Legislature has reduced this case to a single abstract question of law. In the absence of some statute, a municipal corporation is not liable for damages resulting from the original grading of a street, alley, or avenue, either within the original corporate limits, or in any addition thereto. The power to establish grades is incident to its charter, and is implied from the dedication. It was so held in Fletcher v. Seattle, 43 Wash. 627, 86 P. 1046, 88 P. 843, where in the first opinion rendered by the court the reasons for the rule are set forth and further illuminated by ample quotation from Mr. Dillon's work on Municipal Corporations (volume 2, [4th Ed.] § 995). Thereafter the attention of the court was called to a statute (section 821, Ballinger's Ann. Codes & St. being the same as section 47, Laws 1893, in so far as it applies to cases of this character), and the opinion in the Fletcher Case was reversed, and recovery was allowed. Reference to the former act will show that it in terms provided that the section allowing a recovery for grading streets should apply only to the original grading of such streets, avenues, or alleys. To bring the law of this state in accord with the rule in all others, as well as the great weight of authority and reason, as we shall presume, the Legislature of 1909 amended the existing law, changing the proviso of the former acts so that it now reads as follows: 'That this section shall not apply to the original grading of such street, avenue, or alley.' This change was effected while the present action was pending--indeed, while it was on trial--and it is urged on the one hand that the right to recover damages being repealed without saving existing causes of action, no recovery can be had, while on the other hand it is insisted that the act of 1909 operates as a deprivation of a right to recover damages already accrued, and must be held to be in contravention of the Constitution in so far as it affects existing causes of action. If the act of 1909 does deprive appellants of a substantive right, their contention should be sustained, as a similar contention was sustained in Miller v. Union Mill Co., 45 Wash. 199, 88 P. 130. The cases cited to sustain the judgment of the court in that case clearly point the distinction that must exist in all cases, and upon which there has been slight difference of opinion on the part of courts and text-writers. The right of action in the Miller Case and in all similar cases was sustained, not because the right had accrued while the statute was in existence, but because a right existed independent of the statute. This distinguishes most, if not all, of the cases relied upon by the appellant.

In appellant's brief it is said: 'It may be further urged that where a statute gives a corporation or municipality a right to condemn property, and such statute is repealed while condemnation is pending, the proceeding falls to the ground with the repeal of the statute. Such a case in no manner resembles the case at bar. A condemnation proceeding is instituted before the property is taken, a proceeding to determine what the rights of the parties will be when the property is subsequently taken by the condemning corporation. No one, of course, has any vested rights in the matter until the property has been taken or damaged. But when this has been done, as plaintiffs' property in this case was damaged, then the case is entirely different, and the rights resulting from such taking or damaging cannot be divested by legislative enactment. This appears plainly from the cases of Stephens v. Marshall, 3 Pin. [Wis.] 203; City of Eaton, 83 Ill. 535 , already referred to, and 8 Cyc. 906, where it is said that 'the right of a landowner to damages for land taken for public use becomes absolute when the property is actually taken.' That the rights to damages become absolute and vested as soon as the property is taken or damaged is evident, also, from the fact that the condemnation proceedings cannot thereafter be abandoned. Shannahan v. City of Waterbury, 63 Conn. 420, 28 A. 611; Wood v. Trustees, 164 Pa. 159, 30 A. 237; St. Louis Ry. Co. v. Teters, 68 Ill. 144.' The error of this reasoning lies in this: That the original grade of a street, avenue, or alley in the platted portion of a city or town is not a taking or damaging within the meaning of article 1, § 16, of the Constitution. This is made plain in the first opinion in the Fletcher Case. See, also, Callender v. Marsh, 1 Pick. (Mass.) 418; Pontiac v. Carter, 32 Mich. 164; Radcliff v. Brooklyn, 4 N. Y. 195, 53 Am. Dec. 357; Wilson v. New York, 1 Denio (N. Y., 595, 43 Am. Dec. 719.

In 2 Dillon, Mun. Corp., 995b, the author says: 'For the reasons above suggested it seems to us that, on principle the mere provision of the Constitution imposing a liability for property damaged for public use does not create a liability on the part of the municipality for reducing the natural surface of the street, in the course of its normal and ordinary improvement for street purposes proper, to a grade line for the first time established. If there are cases to the contrary, we doubt whether they were...